Publishers are the first to boast that the wide use of freelance writers allows them to offer the American reading At the same time, public a far richer and more diverse cross-section of information and ideas than otherwise would be possible. however, they defend the exploitation of freelance writers to fill their own treasuries as the hapless by-product of a free market system. As today's harsh economic realities force more and more freelance writers to withdraw their talents in favor of more reliable and better paying employment, it is the American public who suffers the greatest loss. The Federal government's record of intervening in the marketplace where raw market power has been abused, especially when society has a greater, identifiable stake in preserving its access to ideas, is longstanding; indeed, these efforts represent some of this country's finest moments. WIW, thus, urges Congress to correct this problem by its immediate passage of S.2044. SUBMITTED ON BEHALF OF BY: Demel Deponents Daniel Rapoport Christine Moore Christine Moore WIW Legislative Committee Shared A Slechte Ronald A. Schechter Goldfarb, Singer & Austern GRAND CENTRAL STATION/NEW YORK, N.Y. 10163 JOINT ETHICS COMMITTEE / POST OFFICE BOX 179 "A The Joint Ethics Committee is an organization whose members are illustrators, painters, art directors (agency, editorial, corporate and TV), graphic artists, photographers, and the people who represent them in the world of business. It is an organization that strives for the working artist's and The Joint Ethics Committee was founded in 1945. Agroup of New York In 1948 the JEC adopted what is called the Code of Fair Practice, which quickly became the guideline for the professional art world. This group has since expanded to include the American Society of Magazine Photographers, The Graphic Artists Guild and the Society of Photographer and Artists Representatives. In 1978 the Code of Fair Practice was updated to encompass, the current needs of the Graphic Communications Industry and the new copyright law. One of the most important items that concerns us is the "work for hire", clause (2). The JEC states, in article 15, that commissioned art work is not to be considered as "Work for Hire". The concept of freelance creative persons working under a "work for hire" agreement is both unethical and unfair, and in many instances it is abusive. Unlike an employee, freelance persons do not receive regular, continuing pay checks nor do they receive benefits (medical, pension etc.) AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS, INC. THE ART DIRECTORS CLUB, INC. THE GRAPHIC ARTISTS GUILD, INC. SOCIETY OF PHOTOGRAPHER AND ARTIST REPRESENTATIVES, INC. COUNSEL: PAUL R. POPS (212) RE 2-8844 Pricing in the Graphic Communications Industry is based primarily on usage. We believe this to be ethical and fair business practice. If a buyer wants to use a visual in newspaper only, to run in just two cities, it is logical that the price for this would be less than than using the same visual in all newspapers across the country. It becomes abusive when the buyer prices the assignment for this limited usage and then states that the assignment agreement must be a "work for hire". In increasing numbers of times this statement is made after the start of an assignment or on a leter mailed, purchase order. As a "work for hire", the buyer is immediately given, without compensation, the right to use this visual in any and every area of advertising and promotion. A further unfairness, as the copyright code now exists, is the pitting of one individual against a large many faceted company or coproration. The ownership of the original is also a confusion. The original is quite separate from the rights and should be treated separately. The Joint Ethics Committee supports "specific and defined usage" and realizes the importance of upholding the principle of "payment per usage". We are very aware of increasing incidences regarding "work for hire" in the Graphic Communications Industry and of the injury and harm it is causing in this market. The Joint Ethics Committee sponsered by the Society of Illustrators, The Art Directors Club, The American Society of Magazine Photographers, the Society of Photographers and Artist Representatives and The Graphic Artists Guild requests that the entire clause (2) definiation, Section 101 of Title 17, be stricken. Respectfully submitted Joint Ethics Committee AMERICAN SOCIETY OF MAGAZINE PHOTOGRAPHERS, INC. THE ART DIRECTORS CLUB, INC. THE GRAPHIC ARTISTS GUILD, INC. SOCIETY OF ILLUSTRATORS, INC. SOCIETY OF PHOTOGRAPHER AND ARTIST REPRESENTATIVES, INC. COUNSEL: PAUL R. POPS (212) RE 2-8844 UNITED STATES SENATE Statement of Phillip Leonian on S.2044, To Amend The Definition of My name is Phillip Leonian. I am a free-lance photographer. Although I am an active member of three of the creator organizations submitting testimony on S.2044 to amend the copyright law regarding "works made for hire," this is my own statement. is my own statement. My hope is to supplement rather than echo the information offered by others. Photography was invented in 1839. From that date to this, only the 1865 copyright law revision which gave statutory copyright to photographs marked the appearance of photographers in force to testify to their needs for copyright protection. There is consequently relatively little in the legislative history directly relating to business practice in my field of authorship. A few notes on the subject may also serve to explain the absence of photographers from participation in the process up till now, and our presence today. Until the 1976 revision, the federal copyright law was properly, if loosely, referred to as a publisher's law. Until late in the nineteenth century, the only practical way to "publish" a photograph was to make photographic prints from photographic negatives. These prints once made, however, could be re-photographed. The photographer thus acted as his own publisher, but had no protection against unauthorized copying by other photographers. Matthew Brady is said to have "ripped off" the work of other photographers early on, and was in turn ripped off himself. No wonder then that pre-1865 photographers clamored for the protection of the copyright statute. In the 1880's various forms of mechanical reproduction began to supplement the straight photographic process. Soon after the turn of the century, the half-tone process familiar today was perfected enough to reproduce photographs in the pages of newspapers and magazines. This clearly marked the end of the era of photographer as publisher, and 155 of photographer reliance on the protection of the federal statute as well. Up until 1945 most of the photographs reproduced by publishers were done either by staff photographers (regular employees) or obtained from picture agencies and libraries. The Library of Congress is a leading example. That small percentage done by free-lance photographers was probably in large part "work made for hire." Photographers gave little thought to the exact status since for them the possession of the photographic negative represented practical ownership of access to the copyright. The rest of the short history of business practice in photography has taken place within my own working life. When I came to New York City in the early fifties and established myself as a working photojournalist, I found a business where extremely competent, competitive photographers and equally professional magazine editors worked together with a high degree of trust. Verbal contracts were the rule. A strong respect for trade practice made the wheels go round. Publishers paid modest day-rates and all job-related expenses and in return got our best efforts, and one-time reproduction rights. We were given additional incentive to quality by payment of an additional "page rate" if the total of published pages multiplied by this rate exceeded the time-based payment due, and by the possibility of further income from subsequent sales. We could, and did, accept assignments with no immediate profit if the aftermarket potential was high (much like the arrangements between independent television producers and the networks today.) We photographers were aware of the danger posed to this (to us) equitable arrangement by the presumption in law at that time that a photographer doing specially commissioned work even though as an independent contractor was deemed to do "work for hire" absent agreement to the contrary, so it became common practice to confirm our verbal and trade understandings with editors on the bills we sent for our fees and job-related expenses. By 1960 the magazine marketplace started to shrink. As a "last-in" I was one of the first out, turning to advertising illustration. my first studio in New York in 1962. I was still in a position, however, to observe the distress caused around 1965 when an editor unilaterally asserted proprietary rights in the black-and-white negatives and color transparency originals of the photographers who did assignments for him. |